894 F.2d 161 (5th Cir. 1990), 88-3830, Treadaway v. Societe Anonyme Louis-Dreyfus

Docket Nº:88-3830.
Citation:894 F.2d 161
Party Name:Alvin J. TREADAWAY, Plaintiff-Appellee, and Fidelity & Casualty Company of New York, Intervenor-Appellee, v. SOCIETE ANONYME LOUIS-DREYFUS et cie, Defendant-Appellant.
Case Date:February 14, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 161

894 F.2d 161 (5th Cir. 1990)

Alvin J. TREADAWAY, Plaintiff-Appellee,

and

Fidelity & Casualty Company of New York, Intervenor-Appellee,

v.

SOCIETE ANONYME LOUIS-DREYFUS et cie, Defendant-Appellant.

No. 88-3830.

United States Court of Appeals, Fifth Circuit

February 14, 1990

Rehearing Denied April 3, 1990.

Page 162

Derek A. Walker, Peter B. Sloss, Kenneth J. Servay, Douglas L. Grundmeyer, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, La., for defendant-appellant.

Terrence J. Lestelle, Lestelle & Lestelle, New Orleans, La., for Treadaway.

Linda S. Harang, John M. Sartin, Jr, Cornelius, Sartin & Murphy, New Orleans, La., for Fidelity & Cas. Co. of New York.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, JOHNSON, and HIGGINBOTHAM, Circuit Judges.

WISDOM, Circuit Judge:

This is the latest in a long series of cases involving the application of Scindia and 33 U.S.C. Sec. 905 to a longshoreman's negligence suit against a vessel. We affirm the district court's finding of liability in favor of the longshoreman and against the vessel operator, but reverse the judgment with respect to the amount of damages.

I. FACTS AND PROCEDURAL HISTORY

Alvin J. Treadaway, a longshoreman working aboard the M/V SOPHIE B, was injured when he slipped off of a step that was partially obstructed by a pipe. 1 On January 22, 1986, the date of the accident, the SOPHIE B was located mid-river at Ama, Louisiana. Treadaway and his gang

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were loading grain aboard the vessel, a small bulk carrier with two holds. Treadaway fell while on his way to eat lunch in the "tally room" furnished for the longshoremen's use. 2 After his injury, Treadaway collected approximately $68,000 from his employer's compensation insurer, Fidelity & Casualty Company of New York (Fidelity). Fidelity also paid various medical expenses incurred by Treadaway. He then brought suit against Societe Anonyme Louis-Dreyfus (Louis-Dreyfus), the operator of the SOPHIE B, 3 under 33 U.S.C. Sec. 905(b), the Longshoremen's and Harbor Workers' Compensation Act. Fidelity intervened in the suit to recover for its compensation payments and medical benefits.

The SOPHIE B's voyage began in Antwerp, Belgium. While crossing the Atlantic Ocean, the vessel encountered several days of rough seas, which caused some damage to the ship. In particular, the waves damaged a metal grill that served as a walkway to the tally room. Before arriving at its first destination, Mobile, Alabama, the vessel's chief mate threw the damaged grill overboard, exposing a number of pipes and the two-inch metal frame that supported the grill.

From Mobile, the SOPHIE B departed for Ama, Louisiana, arriving there on January 17, 1986. Before commencing loading operations at 11:50 on the night of January 21, the chief mate and the stevedore each inspected the ship, and found no oil or water in the area leading to the tally room. Before Treadaway's gang came aboard at 8:00 a.m. on January 22, the vessel's chief mate and the gang's foreman performed further inspections. Again, there was no report of oil or water near the tally room. The foreman recalled the absence of grating, but did not consider it to be a dangerous situation.

The tally room is located in the starboard, aft section of the main deck of the SOPHIE B. The main deck is one level below the gangway. To enter the tally room, Treadaway and the other longshoremen descended a ladder to the main deck, proceeded through the passage where the grill was missing, and then came upon the "junction box", a metal platform. Across from the junction box was the bulkhead and the water-tight door to the tally room. To facilitate passage over the coaming, 4 a single step was welded to the bulkhead just below the door. The step was over twenty-six inches from and seven inches down from the junction box. 5 A pipe three inches in diameter ran across the back of the step (parallel to the bulkhead), leaving approximately six to eight and one-half inches of unobstructed stepping surface. 6

Treadaway introduced testimony that on the day of the accident the area around the tally room was covered with oil and water. One of his co-workers testified that the longshoremen had to "wade ... through" four or five inches of water in that area. The plaintiff testified that he saw oil coming through the pipes that usually were covered by grating. Both stated that these conditions existed from the moment they boarded the vessel, although neither of them reported this to the crew. The plaintiff also presented the testimony of a marine architect who told the jury that he had never seen a pipe placed over a step and that he considered the situation to be unsafe. Considering the step and the absence of grating, he described the area as "an accident waiting to happen".

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The defendant provided testimony that the tally room area was inspected and accepted just before the commencement of the 8:00 a.m. shift, there was no oil or water in the area either before or after Treadaway's fall, the walkway was safe even without the grill, and the presence of the pipe on the tally room step was both common and safe. 7

Treadaway began work shortly after 8:00 a.m. During the morning he had approached and entered the tally room on two occasions. On his third trip, around 11:30 a.m., Treadaway approached the single step leading to the room holding in his right hand a bag of boxed lunches for his gang. From his position on the junction box, he put his right foot on the step and attempted to pull himself through the doorway with his left hand, a hand that was weakened because of a prior condition. His foot hit the pipe on the back of the step and he fell backward. The fall fractured his coccyx and resulted in a mild concussion. Treadaway continued to work after the fall, operating the "button box", the control panel that directs the spout during loading, but he was unable to finish the work-day.

The jury returned a verdict finding Louis-Dreyfus seventy-five percent at fault and Treadaway twenty-five percent at fault. It assessed a total of $298,000 in damages for the plaintiff. The defendant filed motions for judgment notwithstanding the verdict or, alternatively, for a new trial. The district court denied both motions. The defendant then filed this appeal, principally arguing three issues: 1) that the district court erred in denying its post-trial motions because there was no evidence of negligence, 2) that the district court committed prejudicial error by not instructing the jury on the distinction between negligence and unseaworthiness, and 3) that the jury awarded an excessive amount of damages.

II. DISCUSSION

A. Motions for Judgment Notwithstanding the Verdict and New Trial

Louis-Dreyfus argued in its post-trial motions that Treadaway presented no evidence from which the jury could have found that the defendant's negligence caused his fall. It argued that the obstruction of the step by the pipe, if it was a defect, was a design defect and was the sole cause of the accident. Because Louis-Dreyfus did not design or modify the step, the jury necessarily had to base its finding of liability on unseaworthiness. Further, Louis-Dreyfus argued that the obstruction was obvious, and that plaintiff was a "careless and inattentive stevedore" who should not recover. The trial court denied both motions.

  1. Standard of Review

    Our standard of review with respect to motions for directed verdict and for judgment notwithstanding the verdict is based on the principle that "it is the function of the jury as the traditional finder of fact, and not the Court, to weigh conflicting evidence ...". 8 Accordingly, these motions are inappropriate to reverse a jury's decision unless consideration of all of the evidence and inferences favorable to the nonmoving party convinces the Court that no reasonable jury could arrive at a contrary verdict. 9

    The decision to grant or deny a motion for new trial is a matter for the trial court's discretion, and this Court will reverse its ruling only for an abuse of that discretion. 10 When, as here, the trial judge has refused to grant a new trial, "all the

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    factors that govern our review of his decision favor affirmance". 11

  2. Evidence of Negligence

    Since the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 12 as clarified by the landmark case Scindia Steam Navigation Co. v. De Los Santos, 13 a vessel owner or operator 14 is no longer liable to a longshoreman for injuries caused by a vessel's unseaworthiness. 15 A longshoreman must prove negligence to recover from the shipowner or operator. 16

    Scindia explained that before commencement of loading or unloading operations, a shipowner owes two duties to longshoremen: 1) to exercise "ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety", and 2) to warn the stevedore of any hidden dangers of which the ship is, or should be, aware. 17 Once the stevedoring operations have begun, the vessel has no general duty to discover dangerous conditions that develop, but an exception exists when the vessel knows of a dangerous condition and of the stevedore's unreasonable response to it. 18 We have consistently adhered to this statement of the law in this Circuit. 19

    This case involves the vessel's duties to exercise ordinary care and to warn of defects before operations commence. In support of the judgment below, Treadaway argues that Louis-Dreyfus was negligent in three respects: Louis-Dreyfus 1) failed to detect...

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